throbber
1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ------------------------------------x
` APPLE INC., Petitioner,
` v.
` SMARTFLASH LLC, Patent Owner.
` ------------------------------------x
` CBM2015-00028 (Patent 7,334,720 B2)
` CBM2015-00029 (Patent 7,334,720 B2)
` CBM2015-00031 (Patent 8,336,772 B2)
` CBM2015-00032 (Patent 8,336,772 B2)
` CBM2015-00033 (Patent 8,336,772 B2)1
` ------------------------------------x
` INITIAL TALK CONFERENCE CALL
` June 29, 2015
` 2:02 p.m.
` Before JENNIFER S. BISK, RAMA G. ELLURU,
` JEREMY PLENZLER, and MATTHEW R. CLEMENTS,
` Administrative Patent Judges.
`
` ELLURU, Administrative Patent Judge
`
` Reported By:
` ERICA RUGGIERI, RPR, CSR, CLR
` Job No: 39714
`
`

`
`2
`
` A P P E A R A N C E S:
`
` ATTORNEYS FOR PETIONER:
` ROPES & GRAY, LLP
` 700 12th Street Northwest
` One Metro Center
` Washington, DC 20005-3948
` 202.508.4600
` BY: J. STEVEN BAUGHMAN, ESQ.
` Steven.Baughman@ropesgray.com
`
` ATTORNEYS FOR PATENT OWNER:
` DAVIDSON BERQUIST JACKSON & GOWDEY, LLP
` 8300 Greensboro Drive, Suite 500
` McLean, VA 22102
` 571.765.7700
` BY: MICHAEL R. CASEY, ESQ.
` mcasey@dbjg.com
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`1
`
`2 3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` MR. BAUGHMAN: Steve Baughman
` from Ropes & Gray joining.
` MR. CASEY: Hey, Steve, it's
` Michael. The court reporter is here
` too. I didn't hear anything about
` Google joining so I assume they are
` not.
` JUDGE ELLURU: Hello, this is
` Judge Elluru. I have with me Judges
` Bisk, Clements and Plenzler. This is
` the initial talk conference for
` CBM2015-00028, 29, 31, 32 and 33.
` Who do we have for petitioner?
` MR. BAUGHMAN: Your Honor, Steve
` Baughman from Ropes & Gray for
` petitioner.
` JUDGE ELLURU: Mr. Baughman, do
` you expect anyone else today?
` MR. BAUGHMAN: No, Your Honor.
` Thank you.
` JUDGE ELLURU:: Do you have a
` court reporter on the line?
` MR. BAUGHMAN: Petitioner does
` not, Your Honor.
` JUDGE ELLURU:: Who do we have
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` for patent owner?
` MR. CASEY: Michael Casey from
` Davidson Berquist Jackson & Gowdey and
` we do have a court reporter on the
` line, Your Honor.
` JUDGE ELLURU: Thank you. We do
` ask that the patent owner file the
` transfer of today's teleconference as
` an exhibit in the record for each of
` these cases.
` MR. CASEY: Your Honor, we had
` this discussion once before. With
` your permission I think it's supposed
` to be filed as just a notice paper
` because it's not truly patent owner's
` exhibit, but I will take direction
` from you however you wish.
` JUDGE ELLURU: That's fine. The
` way you've been doing it is fine.
` MR. CASEY: Your Honor, if I
` could have, again, permission to file
` the same transcript with the comment
` header, I know it's not normally done
` but it's not an exhibit by patent
` owner. It's been fairly effective in
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` other cases.
` JUDGE ELLURU: That's fine too.
` So we received a proposed, a list of
` proposed motions by each party. Could
` we start with the petitioner first,
` please.
` MR. BAUGHMAN: Yes, thanks, Your
` Honor. The first is simply a note
` that we make pro hac vice admission
` motions but understanding that it's
` already been authorized.
` The second is a request to
` expedite the schedule in this group of
` trials to permit synchronization with
` final argument in the CPM2015, 15
` through 18 proceedings, which is set
` for November 9th. We have a proposal
` to essentially move forward our due
` date to the time for petitioner to
` reply forward by roughly a month in
` order to shorten our time and make it
` possible, we think, to synchronize
` that final hearing date. We have
` different ways of approaching that,
` depending on whether patent owner
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` chooses to have a due date for its
` motion to amend, if it's contemplating
` that.
` And with Your Honor's
` permission, we'd be happy to submit a
` proposal for schedule, but I
` understand from conferring with
` counsel for patent owner that the
` request that the parties received last
` night from counsel for Google in
` another matter may complicate our
` ability to negotiate that.
` So happy to elaborate further
` Your Honor, but maybe I should pause
` there for any questions.
` JUDGE ELLURU: And can you just
` sort of make clear for us the basis
` for the request of expediting the
` schedule in these cases.
` MR. BAUGHMAN: Certainly, Your
` Honor. Thank you. So in the 2015 --
` excuse me, CPM201500015 through 00018
` matters, the board has already set a
` common final hearing date for four
` patents which have a number of claims
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` challenged under 101 grounds and one
` claim challenged under 112 grounds for
` a single date, November 9th.
` The petitions we are speaking
` about today, CPM201500028, 29, 31
` through 33 also involve claims being
` challenged under 101 grounds and we
` think those could officially be heard
` at the same time as the November
` hearing. At the moment the hearing in
` those matters being discussed today is
` set for January 6th. So it's not a
` significant difference in timing of
` the final hearings and we would
` suggest that they could officially be
` brought forward to the November 9th
` date. And petitioner has some
` proposals in mind by which we could
` essentially absorb most of that time
` change, particularly if the patent
` owner is not going to amend, but even
` if it is, we think minor adjustments
` could be made to the rest of the
` schedule to make that possible.
` JUDGE ELLURU: Mr. Casey, would
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` you like to respond?
` MR. CASEY: Yes, Your Honor. I
` think that the patent owner believes
` that the proceedings that Apple is
` talking about trying to join with this
` one are for different patents. We
` will already be having a hearing on
` four and as Mr. Baughman alluded to,
` there are pending petitions out there
` by Google that relate to the '720 and
` '717 patents, which are the subject
` matter of the proceedings that
` Mr. Baughman is proposing be
` synchronized with CPM2015, 15, 16, 17
` and 18.
` So I think, Your Honor, that
` this, as Mr. Baughman said, it's not a
` long change, it's a two-month change
` in the schedule but given the number
` of cases that are out there, I think
` that patent owner believes that it's
` going to need the time to be able to
` address all the different proceedings
` that are ongoing.
` It's not just Smartflash and
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Apple, there's also Samsung
` proceedings and there's also Google
` proceedings and there are additional
` proceedings as well. So the patent
` owner believes that the schedule
` should stay the way it is, especially
` since we don't yet know what Google is
` actually proposing or going to do with
` its other cases that might be, might
` be upcoming as well.
` JUDGE ELLURU: Mr. Baughman, do
` you have anything to add?
` MR. BAUGHMAN: Your Honor, just
` that we think it does make sense to
` address the matters that are between
` Apple and Smartflash, understanding
` that there -- without control of these
` parties other parties who are moving
` forward on their own challenges we
` think the challenges between these two
` parties would make sense to hear
` together. We already have four
` patents being heard and, respectfully,
` due to additional patents that are
` sufficiently related, we think it
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` would be efficient to hear our
` challenges together.
` JUDGE ELLURU: Let me ask the
` parties this question. At this point
` in time do either party contemplate --
` does either party contemplate opposing
` the third parties' pending motions to
` join these cases? Starting with
` petitioner.
` MR. BAUGHMAN: Your Honor,
` respectfully, we are trying to
` understand the scope of the proposal.
` We had heard initially from counsel
` for Google but not in the level of
` detail that we received last night by
` e-mail, and I hadn't seen that until
` this morning, so we are not yet in a
` position to give a final position on
` that but we are certainly open to
` discussing it, once we understand the
` scope of it.
` JUDGE ELLURU: And patent owner?
` MR. CASEY: Your Honor,
` Smartflash would be greatly opposed to
` anything that looks even remotely like
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` the schedule that Google has already
` proposed because essentially they are
` asking that the preliminary responses
` be due in two weeks. I'm supposed to
` be out on vacation this week and I had
` to cancel it for other things as well,
` but there's no way that we can be
` prepared to have a preliminary
` response in two weeks. And then after
` that, their proposal is essentially
` that around six weeks after the
` preliminary response would be patent
` owner's response, which means that
` Your Honors would have to get a
` decision out on the cases in that
` period and then after the decision is
` out, patent owner would have some,
` appears to be very short period of
` time to file a factual response. So I
` think that Smartflash will definitely
` oppose such a motion if it's anything
` like what's been proposed.
` But Your Honor, the e-mail that
` was sent out last night was not done
` with any meet and confer. It was
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`12
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` approached on Tuesday, I asked for a
` schedule on Wednesday and heard
` nothing until Sunday night,
` essentially just before this call. So
` I can't speak for what Google is
` trying to do but the schedule that
` it's asking for is extremely
` aggressive and prejudicial.
` JUDGE ELLURU:: Thank you. I do
` want to make clear for the record of
` this transcript -- of this transcript
` for this call that Judge Anderson is
` also on this call. I'm going to put
` the parties on mute while I confer
` with the panel. Thank you.
` (Brief recess.)
` JUDGE ELLURU: The panel is back
` online. Do we have counsel for
` petitioner present?
` MR. BAUGHMAN: Yes, Your Honor.
` JUDGE ELLURU: And counsel for
` patent owner?
` MR. CASEY: Yes, Your Honor.
` JUDGE ELLURU: The panel has
` decided that given the number of
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`13
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` claims in each of the sets of papers
` presented and the number of patents at
` issue, we are going to stick to the
` schedule, current schedules in each
` set of cases. Is that clear?
` MR. BAUGHMAN: Understood, Your
` Honor, for petitioner.
` JUDGE ELLURU: And Mr. Casey?
` MR. CASEY: Yes, understand,
` Your Honor.
` JUDGE ELLURU: And moving on to
` patent owners with the proposed
` motion, Mr. Casey, would you like us
` to walk through -- would you like to
` walk through your motion to propel
` routine discovery?
` MR. CASEY: Yes, Your Honor. We
` have addressed this on two different
` occasions before but the additional
` evidence that has come to light is
` that Mr. Wechselberger, the deponent
` in these cases, did agree in his last
` deposition in the last set of cases
` that he did do a report on
` noninfringing alternatives and on
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`14
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` noninfringement though he indicated
` that he couldn't remember which claims
` he had done the noninfringing
` alternatives report for. But we
` believe that that information, coupled
` with the fact that the standard that
` Mr. Wechselberger uses in both the
` litigation and in the present
` proceeding, is not broadest reasonable
` interpretation defined in the
` ordinary meaning but the report is
` properly discoverable and should have
` already been served. And, as you
` know, the routine discovery is
` supposed to be served but it's
` inconsistent with the position
` advanced by the party during the
` proceeding. And given that this is a
` test of relative preemption and even
` if the Petitioner has alleged
` challenged claims direct that nothing
` more than the unpatentable abstract
` idea and the challenged claims' broad
` functional nature firmly triggers
` preemption, we believe that the
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`15
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` reports are relevant and should have
` been -- should have been provided with
` petitioner. And we would like
` permission to file a motion
` essentially to compel the production
` of these -- of those noninfringing
` alternative report and the report on
` noninfringement, Your Honor.
` JUDGE ELLURU: Thank you.
` Mr. Casey, are you making any
` additional arguments than that were
` already presented on this issue in the
` previous sets of cases?
` MR. CASEY: Yes, Your Honor.
` The fact that Mr. Wechselberger has
` now admitted during depositions that
` he did, in fact, prepare a report on
` noninfringing alternatives in the
` District Court litigation, which will
` be relevant to the issue, not just
` that we believe it, Mr. Wechselberger
` has agreed under oath that he did and
` just said he can't remember which they
` were.
` Your Honor, the alternative to
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` this is potentially that the reports
` be brought -- the report be provided
` to Your Honors for in camera review so
` that you can decide whether or not the
` report is, as I'm -- I believe it must
` be, on the infringing alternatives and
` relating with the same pipe
` instructions and directed to whether
` or not there are or what the breadth
` of the preemption is, which is the
` central issue in the case on 101 or
` that aspect of the case on 101.
` JUDGE ELLURU: Mr. Baughman,
` would you like to respond, including
` whether petitioner is willing to file
` for a stipulation indicating that
` petitioner admits that there are
` noninfringing alternatives for
` infringement purposes?
` MR. BAUGHMAN: Your Honor, I
` think we stated this in the prior
` hearing in CPM2015, 15 through 18, and
` we -- you take the position that Apple
` is not infringing so what Apple is
` doing, for example, is noninfringing.
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`17
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Also, I think we stated that on the
` record in that prior hearing.
` And I believe that's reflected
` in the board's order from that hearing
` of May 13th, which is paper 28 in the
` 201500015 matter. So, respectfully, I
` don't think there is anything new here
` about Mr. Casey's motion. We don't
` think it's appropriate to have a trial
` within a trial about whether Apple is
` infringing. We are certainly
` litigating that issue. And it is our
` position that Apple is not. And as
` far as being inconsistent, we don't
` think this does fall within the scope
` of routine discovery for all the
` reasons we stated. If Your Honor
` wishes, I can try to repeat those on
` the record, but for all the reasons we
` stated on the record in the prior
` hearing, we don't believe this is in
` any way inconsistent with the
` positions we have taken in our
` petitions, for example in the
` CPM201500028, which is paper 5 at
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`18
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` pages 35 to 37 that's at issue here in
` today's hearing, and we talked about
` relative preemption and the case law
` we cite, including Mayo versus
` Prometheus, that's 132 Supreme Court
` 1289 at 1303, makes clear that there's
` not a separate inquiry as Mr. Casey is
` suggesting but that the two-prong
` tests that played out by the Supreme
` Court for 101 is a way of baking in
` that preemption analysis because
` judges are not institutionally well
` suited to making determinations about
` what level of preemption is
` appropriate in a case. It's all
` proportional and it's reflected in the
` test already.
` So, respectfully, it's not
` within the scope of routine discovery,
` it's a misreading of the law and our
` position to suggest so. Again, this
` seems to be an attempt to get our
` discovery of our confidential
` information outside the District Court
` protective order.
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`19
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` The suggestion for in camera
` review I find a bit confusing because
` I understand that one of the issues
` that the board faces is a need to make
` this basis for determination public.
` I don't know how that would work. And
` we don't see any basis for additional
` discovery here either. If that's
` going to be the next topic. We think
` this isn't appropriate for either
` routine or additional discovery and
` respectfully don't see a basis for
` this argument to begin with.
` JUDGE ELLURU: Mr. Casey?
` MR. CASEY: Yes, Your Honor. I
` think that actually much to
` Mr. Baughman's point, the production
` of the noninfringing alternatives
` report will actually reduce the number
` of issues rather than create a trial
` within a trial because it will create
` as an admission on the record those
` things which petitioner indisputably
` agreed are alternatives as opposed to
` creating an issue where patent owner
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`20
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` will have to ask the experts do you
` believe that this is a noninfringing
` alternative, how about this, how about
` this and then eventually Your Honors
` will have to decide whether or not you
` agree with the witness rather than
` being able to simply use the admission
` of the party.
` And frankly, Your Honor, if we
` can do this without disclosing
` confidential information, all the
` better. I don't know anyone that
` wants to deal with filing things under
` seal. So I don't think that it's a
` fair characterization to say that we
` are attempting to get at confidential
` information outside the protective
` order. We just want what we are
` entitled to, which is the information
` on what the noninfringing alternatives
` are.
` If they are only noninfringing
` alternative is what Apple is doing,
` that's one thing, but if there are
` other noninfringing alternatives,
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` obviously they must have been able to
` articulate what they were in some
` nonconfidential way. So I don't think
` that that really should be driving the
` entire inquiry.
` JUDGE ELLURU: Thank you,
` Mr. Casey. Are the parties willing to
` meet and confer to see if there's any
` kind of stipulation that the parties
` can agree to resolve this issue, for
` example, a stipulation indicating
` describing the methods and systems
` that are noninfringing alternatives
` without the report itself? Starting
` with Mr. Baughman.
` MR. BAUGHMAN: Your Honor, we
` have stipulated to Apple's position in
` litigation on the record. I'm not
` sure that that stipulation that Your
` Honor has just described is one that
` could be done without a lot of
` disagreement. I do know that, again,
` in the litigation, patent owner's
` expert talked about noninfringing
` alternatives at trial. We didn't
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`22
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` actually argue, as I understand it,
` any evidence from our own expert at
` trial and put in a stipulation there
` to that effect.
` So I don't know whether it's
` going to be something that is really
` amenable to agreement between the
` parties, although if patent owner
` wishes to take positions on this, I
` don't understand why its expert
` couldn't do so.
` JUDGE ELLURU: Mr. Casey?
` MR. CASEY: Your Honor, I'm
` always willing to try to negotiate.
` Perhaps what you are suggesting is the
` different way to do it and we will see
` if we can re-raise the issue in a week
` or maybe less than a week, well, it's,
` Friday's a holiday, sometime around
` the beginning of next week if the
` parties haven't come to an agreement.
` But as I said, I think that we are
` interested in what was admitted as
` noninfringing alternatives. I think
` Mr. Baughman is right that the
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`23
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` noninfringing alternatives were not
` discussed at trial because the report
` was excluded at the trial but I don't
` believe that means that the report
` wasn't generated. In fact,
` Mr. Wechselberger said he did the
` report.
` So to the extent that we can
` negotiate this between the parties,
` I'd be happy to do it, but I don't
` want to be waiting with the right to
` bring this motion, Your Honor, and I
` assume you understand that.
` JUDGE ELLURU: I understand, and
` we do encourage the parties to meet
` and confer on this issue to just see
` if there's any kind of stipulation
` that can be reached that would resolve
` the issue, but at this time we are
` going to deny patent owner's request
` for motion to compel routine discovery
` based on the reasons that we've
` previously provided in CPM20150015,
` 16, 17, 18 and the reasons we provided
` in CPM201400190, 192, 193, 194 and
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`24
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` 195.
` And the next proposed motion by
` patent owner is the motion to permit
` coordination of the deposition
` transcripts. Is this the same request
` that's previously been made,
` Mr. Casey?
` MR. CASEY: Yes, Your Honor, it
` is. We have done this in the earliest
` Apple cases that we just had hearing
` on, we have done it in the Samsung
` cases and we have done it in CPM 2015
` 15 through 18. So hopefully it's not
` a new request or a request that will
` have problems. And it's worked --
` it's worked well in the past.
` JUDGE ELLURU: Mr. Baughman, I
` assume there's no objection on your
` part?
` MR. BAUGHMAN: No, Your Honor.
` We take the same position.
` JUDGE ELLURU:: Thank you. And
` the panel is also fine with that. So
` the practice that you've been doing
` propelling those deposition
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` transcripts is amenable to the panel.
` We will issue a brief order for
` today's -- covering today's
` teleconference.
` Are there any other issues that
` the parties would like to raise at
` this time, starting with petitioner?
` MR. BAUGHMAN: Your Honor, I
` just note that as before we don't
` expect the need for protective order
` but we would endeavor to reach
` agreement in reaching out to the board
` if one would arise.
` JUDGE ELLURU: Thank you. And
` Mr. Casey.
` MR. CASEY: One last
` housekeeping note, Your Honor. You
` mentioned that Judge Anderson is on
` the phone. As I promised the court
` reporter, if there were any new names,
` can I get a spelling for Anderson? Is
` it s-o-n or s-e-n?
` JUDGE ELLURU: S-o-n.
` MR. CASEY: Okay. Thank you
` very much, Your Honor. Patent owner
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
` doesn't have anything else.
` JUDGE ELLURU: Thank you. We
` appreciate your time. This call is
` adjourned.
` MR. BAUGHMAN: Thanks, Your
` Honor.
` (Whereupon, the call was ended.)
` (Time noted: 2:26 p.m.)
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`27
`
` STATE OF NEW YORK )
` ss.:
` COUNTY OF NEW YORK )
`
` I, ERICA L. RUGGIERI, RPR and a
` Notary Public within and for the State
` of New York, do hereby certify:
` That I reported the proceedings
` in the within-entitled matter, and
` that the within transcript is a true
` record of such proceedings.
` I further certify that I am not
` related by blood or marriage, to any
` of the parties in this matter and
` that I am in no way interested in the
` outcome of this matter.
` IN WITNESS WHEREOF, I have
` hereunto set my hand this 1st day of
` July, 2015.
`
` ERICA L. RUGGIERI, RPR
`
`1
`
`2
`
`3
`
`4 5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
`
`

`
`A
`ability 6:12
`able 8:22
`20:7 21:1
`absorb 7:19
`abstract
`14:22
`add 9:12
`additional
`9:3,24
`13:19 15:11
`19:7,11
`address 8:23
`9:15
`addressed
`13:18
`adjourned
`26:4
`adjustments
`7:22
`Administra...
`1:15,17
`admission
`5:9 19:22
`20:7
`admits 16:17
`admitted
`15:16 22:23
`advanced
`14:17
`aggressive
`12:8
`agree 13:22
`20:6 21:10
`agreed 15:22
`19:24
`agreement
`22:7,21
`25:12
`alleged 14:20
`alluded 8:8
`alternative
`15:7,25
`20:3,23
`alternatives
`13:25 14:4
`15:18 16:6
`16:18 19:18
`
`19:24 20:20
`20:25 21:13
`21:25 22:24
`23:1
`amenable
`22:7 25:1
`amend 6:2
`7:21
`analysis
`18:11
`Anderson
`12:12 25:18
`25:21
`APPEAL 1:2
`appears
`11:18
`Apple 1:4 8:4
`9:1,16
`16:23,24
`17:10,13
`20:23 24:10
`Apple's 21:17
`appreciate
`26:3
`approached
`12:1
`approaching
`5:24
`appropriate
`17:9 18:15
`19:10
`argue 22:1
`argument
`5:15 19:13
`arguments
`15:11
`articulate
`21:2
`asked 12:1
`asking 11:3
`12:7
`aspect 16:12
`assume 3:6
`23:13 24:18
`attempt
`18:22
`attempting
`20:16
`
`ATTORNE...
`2:3,12
`authorized
`5:11
`B
`back 12:17
`baking 18:10
`based 23:22
`basis 6:17
`19:5,7,12
`Baughman
`2:9 3:1,1,14
`3:15,17,19
`3:23 5:7
`6:20 8:8,13
`8:17 9:11
`9:13 10:10
`12:20 13:6
`16:13,20
`21:15,16
`22:25 24:17
`24:20 25:8
`26:5
`Baughman's
`19:17
`beginning
`22:20
`believe 14:5
`14:25 15:21
`16:5 17:3
`17:21 20:2
`23:4
`believes 8:3
`8:21 9:5
`Berquist 2:13
`4:3
`better 20:12
`Bisk 1:13
`3:10
`bit 19:2
`blood 27:13
`board 1:2
`6:23 19:4
`25:12
`board's 17:4
`breadth 16:9
`brief 12:16
`
`25:2
`bring 23:12
`broad 14:23
`broadest 14:9
`brought 7:16
`16:2
`B2 1:7,8,8,9
`B2)1 1:9
`C
`
`C 2:1
`call 1:11 12:4
`12:12,13
`26:3,7
`camera 16:3
`19:1
`cancel 11:6
`case 16:11,12
`18:3,15
`cases 4:10 5:1
`6:19 8:20
`9:9 10:8
`11:15 13:5
`13:22,23
`15:13 24:10
`24:12
`Casey 2:17
`3:3 4:2,2,11
`4:20 7:25
`8:2 10:23
`12:23 13:8
`13:9,13,17
`15:10,14
`18:7 19:14
`19:15 21:7
`22:12,13
`24:7,8
`25:15,16,24
`Casey's

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket